An applicant’s “proposed endeavor” is one of the most important elements of a National Interest Waiver (NIW) petition. A vague or unclear presentation of the proposed endeavor can result in USCIS finding that there is insufficient evidence to show that the applicant’s “proposed endeavor has substantial merit and national importance,” and may lead USCIS to issue a request for evidence (RFE).
Being issued a Request for Evidence (RFE) is not the end of the world; in many cases, the petitioner is able to collect and submit sufficient evidence to meet their burden, “preponderance of the evidence” (which means enough evidence to show that it’s more likely than not, an over-50% chance, that a certain fact is true), of the eligibility criteria at issue. If the petitioner does this, the NIW petition will finally be approved.
However, it is important to note that, while applicants can certainly procure and submit a variety of new evidence that has not been submitted previously, applicants cannot rely on new facts that occurred after the filing of the original petition. Similarly, while applicants can provide more detailed explanation and evidence of their proposed endeavor, they cannot materially change their endeavor to something inconsistent to what they have submitted before.
This rule stems from a line of prior cases, including Matter of Izummi, 22 I&N Dec. 169 (AAO 1998), which state that applicants must prove they met all eligibility requirements at the time of filing the original petition, and cannot make “material changes” to a petition that has already been filed to make an originally deficient case conform to the requirements after-the-fact.
In a recent AAO appeals case, an NIW applicant initially submitted a statement of proposed endeavor which stated their intent to “continue my career in the United States as a Financial Operations Director in the fields of wealth management, credit risk management, and fund administration,” stating they would “expand the global reach of all companies that hire me,”and “enhance the financial capabilities, profitability, and customer portfolio of all organizations that require my expert services.” In support of this plan, the applicant also submitted a job offer letter from a bank, and a list of companies the applicant would seek employment with for a senior manager position.
After the applicant received a Request for Evidence (RFE) to provide more information about how the potential impact of their endeavor rises to the level of national importance, the applicant changed their proposed endeavor strategy and instead argued they will serve as founder and CEO of a management consulting company, which was founded over a year after the filing of the initial petition.
The AAO found that the new proposed endeavor represented a material change to the applicant’s originally submitted proposed endeavor, so that the petition could not be approved on the record. Instead, the AAO found that the applicant should file a new petition based on these new set of facts.
Given this doctrine, an applicant would benefit much from procuring expert advice from the beginning stages of preparing an NIW petition to ensure the strategy is set up in the optimal way from the get-go. As an alternative, if there has been material changes to the facts that affect eligibility, the applicant can also consider filing a brand new petition.
Related posts:
https://legalservicesincorporated.com/immigration/niw-strategy-for-entrepreneurs/
https://legalservicesincorporated.com/immigration/niw-proposed-endeavor/
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